Mandeep Singh (Migration)

[2022] AATA 4203

Mandeep Singh (Migration) [2022] AATA 4203 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mandeep Singh

REPRESENTATIVE:  Mr BAJWA JUJHAR (MARN: 0742209)

CASE NUMBER:  2116883

HOME AFFAIRS REFERENCE(S):          BCC2020/2302524

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 August 2022 at 2:59 pm (VIC time)

DATE OF WRITTEN RECORD:                13 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – false or misleading information or bogus document provided with previous visa application – year 12 examination certificate at a certain school – applicant was doing year 12 at another school at the time – indifference to actions of agent – no compassionate or compelling circumstances justifying granting of visa – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cl 500.217, Schedule 2, criterion 4020(1), (4)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 16 August 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Mandeep Singh, you first arrived in Australia on a Student visa on 10 September 2018 and that visa was current until 15 September 2020 which was the date on which you applied for a further Student visa.  On 29 October 2021, a delegate for the Minister made a decision to refuse your application on the basis that she found you had provided evidence in support of your previous Student visa application that you held immediately before this current application, creating a breach of Public Interest Criterion 4020 (PIC 4020).

4. There was no evidence you had sought a waiver of PIC 4020 and consequently, the delegate found that you did not satisfy clause 500.217 which is a prerequisite for the grant of a Student visa. You appealed that decision to be reviewed by this Tribunal and with your application, you included a copy of the primary decision which you told the Tribunal you had read and understood.

5. We read from it today and discussed it in some detail and I believe that you now do have a good understanding of why the decision was made.  As I explained to you, the role of the Tribunal is to conduct what is referred to as a de novo hearing which means I consider your case afresh and make a new decision about your eligibility for a visa. 

6. While it is my role to consider your case completely afresh, I must do so applying the same laws as those applied by the Department.   

7. Mr Singh, the Tribunal is independent of the Department, meaning the Department doesn’t tell us how to conduct our affairs to decide cases. As I said to you I have before me the Department file which includes all the information you provided with and in support of your application and the Tribunal file which contains all the information that’s come in since you lodged the review application. 

8. In making this decision, I have relied on the information in the files and what you’ve told me here today. The question is whether you satisfy clause 500.217 in Schedule 2 of the Migration Regulations which provides that there is no evidence before the Minister, or in this case, the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for a visa, or, a visa that the applicant has held in the period of 12 months before the application was made.

9. Now, I spent some time explaining to you the way the provisions work and what that is all about is that if there is evidence of bogus documents or information that’s false or misleading in a material particular, subclause 4020(4) provides that PIC 4020 will nonetheless be satisfied if the Minister is satisfied there are compelling circumstances that effect the interests of Australia or compassionate or compelling circumstances that effect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen that justify the granting of a visa.

10. When I asked you about these things, your response was at the time, I was only 18, my family are not educated, I just wanted to travel overseas and I just want to finish my studies and go back and start a business over there.  The Tribunal does not believe that those sentiments constitute circumstances that would lead to the waiver of PIC 4020(1).

11. The Tribunal’s job is to determine (a) whether you have provided any bogus document or evidence that is false or misleading in a material particular and (b) if so, whether a waiver should be granted. 

12. In support of your application – and I read from the primary decision – a copy of which as I stated, you provided with your application, it says that when you lodged your first application, you provided a Punjab School Education Board senior secondary 12th class examination certificate with marks sheet.  Verification was conducted by the Department in relation to this document and Departmental checks confirm the document is bogus as it’s counterfeit or has been altered by a person who does not have the authority to do so.

13. On 30 March 2021, the Department sent you a letter telling you they believed the document was bogus, inviting you to respond, giving you 28 days to do so.  On 26 April 2021, you sent them an email that said, “I’m trying to gather all the evidence required.  I need more time.  Please give me an extension.”

14. On 27 April 2021, they gave you a further 28 days which took you through to 25 May 2021.  On 26 May 2021, you sent in another email that said, “I am not able to contact the agent. I am looking for a new agent to represent my case.  I need some time to sort it out.  Please consider my circumstances and give me a month’s extension to work on this.”

15. That was on 26 May 2021.  Five months later, on 29 October 2021, there had still been no response and the delegate made the decision to refuse your application.  You have told the Tribunal that you were in India.  You had passed year 11 and you were doing year 12.  You wanted to get a visa and so you approached a few agents, you said.

16. You had an agent that gave you the surety that he will apply on the basis that you would have year 11.  You gave him all the documents and you say he said the file is good, I will lodge the application.  Three or four months later, a visa arrived.  Now, you say whatever he asked for, I provided because I went through and asked a number of things.

17. There is no doubt you had paid this fellow, you had entered into an agent’s agreement with him and you had given him a range of documents.  There is some significant inconsistencies.  For example, in the statement of purpose and in the application form it states you went to a school called Shaheed Lishman Singh Government School.  You deny having gone to that school.

18. And you say you went elsewhere, however, there is no question that you say whatever he asked for, I provided.  And it is apparent that you were indifferent to whatever he provided as long as what he was able to do was to organise to get you a visa.

19. And I believe that it was your indifference that caused this bogus information, false and misleading information to be provided because you make no bones about the fact that you did not complete year 12.  The documents that were provided were provided by your agent and you say as you did not complete year 12, they were by definition, bogus documents.

20. You say you only found out about the fact when you got the refusal.  So, the situation is the Tribunal is satisfied that you have provided evidence in the form of bogus documents or evidence that’s false or misleading in a material particular in breach of PIC 4020.

21. When asked, you have provided no circumstances that you would satisfy PIC 4020(4) and so therefore, you do not satisfy PIC 4020 for the purposes of 500.217(1).  You are therefore not eligible for a Student visa and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision under review.

    Tim Connellan
    Member